Drones Face Supreme Court Showdown Over Free Speech Rights
State boards use outdated laws to target content creators, raising urgent questions about free speech in the digital age.
Old-school journalists used typewriters and flash-bulb cameras. North Carolina content creator Michael Jones gathers information with drones. He follows all privacy and safety laws, but unless the Supreme Court intervenes, state regulators stuck in the past will shut him down.
In his petition for review, filed September 9, Jones seeks First Amendment protection for his work. The underlying question is urgent: What counts as speech in the digital age as technology advances from moveable type to thermal-sensor quadcopters and next-generation tools not yet invented?
Jones does not produce a community newspaper, podcast, or any type of political commentary. He takes aerial photographs of private property with the owners' permission. Then he stitches the images together into high-definition maps for clients.
He gathers information, organizes it, and publishes it—just like Benjamin Franklin and other print pioneers in the 1700s. The only difference is the purpose. Jones does not seek to shape public opinion; he just wants to earn an honest living. The First Amendment should protect him the same as if he were producing books or art.
Millions of content creators would benefit from this protection, including coaches, consultants, professors, trainers, and advisers with specialized expertise. End-of-life doulas Akhila Murphy and Donna Peizer talk about death. Traffic light enthusiast Mats Järlström discusses mathematical formulas for timing yellow lights. Retired engineer Wayne Nutt talks about math. All these individuals have received cease-and-desist letters from regulators citing occupational licensing laws that attempt to block their speech.
More recently, censors came after Ryan Crownholm in Los Angeles. His so-called crime? Using publicly available information from sites like Google Maps to make digital drawings. Homeowners and contractors use these drawings for permit applications when they need to show proposed locations for pools, sheds, and similar improvements. Other clients include hotels, resorts, and farmers markets that want visual representations of their land for planning purposes.
Like Jones, Crownholm also petitioned the Supreme Court for First Amendment review on September 9. Our public interest law firm, the Institute for Justice, represents both men.
Courts sometimes call what they do occupational or professional speech. Legal opinions extend the First Amendment to all manner of words and images, but the Supreme Court has said little about occupational speech and the licensing laws that attempt to stifle it.
As our colleague writes in the Harvard Law Review, this ambiguity has led "some lower courts to conclude, in conflict with virtually all established First Amendment principles, that occupational speech is entitled to no meaningful constitutional protection."
NIFLA v. Becerra, a 2018 Supreme Court case from California, clarified some of this misunderstanding. A 5-4 majority held that occupational speech does not exist in a separate, lower-tier category. "Speech is not unprotected merely because it is uttered by 'professionals,'" the high court ruled.
Despite this clarification, abuses continue. The attacks against Jones and Crownholm illustrate how regulators cling to power. To skirt NIFLA, they simply redefine speech as conduct, which becomes easier with new technology. NIFLA dealt with printed notices, which are easily recognized as speech. However, people are not so sure about aerial photographs and Geographic Information System maps.
Regulators exploit this uncertainty.
The North Carolina Board of Examiners for Engineers and Surveyors sent Jones his first warning in 2018, the same year as the NIFLA ruling. Regulators eventually told him he was guilty of the unlicensed practice of land surveying because his aerial maps contained basic information about distances. Even a scale bar, they claim, can turn an aerial image into an illegal, unlicensed land survey.
Surveyors measure property lines for deeds and other legal documents. Jones does not. His clients understand that. If they want official documents, they go elsewhere.
Crownholm's site maps are similar. Yet, in 2021, the California Board for Professional Engineers, Land Surveyors, and Geologists accused him of surveying without a license.
Both cases underscore the need for Supreme Court guidance. New technology can be intimidating, but people have been gathering, organizing, and publishing information for centuries. Regulators need to respect this and stay within their lanes.
Land surveying boards should have no problem finding the outer limits of their authority—boundary setting is what they do. Yet they continue to encroach on the realm of speech. When this happens, courts must step in and draw the line for them.
